The Civil Division of the Court of Appeal handed down judgment in the case of AT (Pakistan) and another v Secretary of State for the Home Department [2010] EWCA Civ 567 on the 26th May 2010. The case concerned the application of the automatic deportation provisions of section 32 of the UK Borders Act 2007 (the Act).

The Act was passed on 30th October 2007; Section 32 was brought into force in 1st August 2008. Both appellants were convicted during this intervening period. Before the Immigration Appeal Tribunal, orders for the automatic deportation of the appellants were made pursuant to s.32. The section provides that the deportation of foreign criminals is conducive to the public good, and mandates deportation orders. Exceptions to the duty, including where there are potential human rights law violations, are contained in s.33.

Before the Court of Appeal, two challenges were raised. The first concerned whether the automatic deportation provisions applied to the appellants, by virtue of the date of their conviction. The second concerned whether if applicable, there was a possible violation of Article 7 of schedule one to the Human Rights Act 1998.

Considering whether the Act was applicable to the appellants, the court considered the commencement provisions. Whilst clearly applying to those persons in custody or holding suspended sentences when the provision enters into force, but who were convicted before the passing of the Act, the commencement provisions did not explicitly mention the situation of the appellants. Recognising that the absence of explicit provision did not indicate an intention to treat groups of offenders differently, the court agreed with the conclusions drawn in Hussein v. Secretary of State for the Home Department [2009] EWHC 2492 (Admin), and found that s.32 applied to the appellants.

Referring to the alternative argument the court outlined Article 7. This provides that no heavier penalty shall be imposed than one in force at the time the offence was committed. The court noted the discretionary deportation orders in s.5 of the Immigration Act 1971, in force at the time the offences were committed by the appellants.

Assessing whether automatic deportation was a penalty within the meaning of Article 7, the court referred in particular to the case of Moustaquim v Belgium (1991) 13 EHRR 802, which determined that such security measures relate to the law of aliens and are not penal.

Presuming that at least one purpose behind the introduction of the automatic deportation provision was prevention of re-offending, the court categorised the legislative provision as preventative, rather than punitive and therefore not within the remit of Article 7.

Dismissing the appeal, the court found that the provision was applicable to the appellants and did not constitute a human rights violation.